'Childcare disparity' to stay - for now?

Background

Section 19 of the Equality Act 2010 protects employees from being indirectly discriminated against by their employer.

Indirect sex discrimination occurs where an employer applies a provision, criterion or practice (PCP), which puts women at a disadvantage compared to men. A classic example of indirect sex discrimination is a requirement for a female employee to work specific hours, which that employee cannot accommodate due to childcare responsibilities. The employer would then need to show that they were justified in imposing that working pattern on the employee in question.

“Childcare disparity” is the term used to describe the burden of childcare responsibilities faced by women, which limits their ability to take on certain working patterns. This concept was introduced back in 1999, in a case called London Underground v Edwards (No 2). So, since the Edwards case, female employees bringing claims of indirect discrimination based on set working patterns have not needed to produce evidence showing that inflexible working patterns disadvantage women; Courts and Tribunals will assume this (or take ‘judicial notice’ of this) automatically.

Given that it has been over 20 years since the ‘childcare disparity’ was first introduced, the EAT recently looked at this afresh in Dobson v North Cumbria Integrated Care NHS Foundation Trust.

The facts

Mrs Dobson was dismissed from her employment as a Band 5 community nurse with the North Cumbria Integrated Care NHS Foundation Trust (the Trust) in 2017. During her employment with the Trust, Mrs Dobson balanced working 15 hours per week over two fixed days and caring for her three children, two of whom are disabled.

In 2016, the Trust required all existing flexible working arrangements to be reviewed, as part of a new rostering policy. Mrs Dobson was unable to agree to changes to her work pattern, due to her childcare commitments. As a result, Mrs Dobson was dismissed.

Mrs Dobson brought a claim for unfair dismissal and indirect sex discrimination, on the basis that the requirement for nurses to work flexibly, including weekends, was a PCP which put her at a disadvantage, due to her sex. Mrs Dobson believed that as a woman, she was more likely to have childcare responsibilities than male colleagues, and the PCP disadvantaged her because of this.

An Employment Tribunal (ET) dismissed Mrs Dobson’s claims, on the basis that the PCP did not put female employees of the Trust at a disadvantage compared to male employees. The ET found that the other employees, male and female, in Ms Dobson’s team were able to meet the Trust’s requirements and there was no evidence that women were disadvantaged due to the change in working hours.

Mrs Dobson appealed.

Decision

The EAT allowed Mrs Dobson’s appeal and found that the ET in the first instance should have taken judicial notice of the fact that women, due to childcare responsibilities, are less likely to be able to accommodate certain working patterns than men. The matter was remitted to the same ET to consider the issues of indirect discrimination and unfair dismissal again.

The EAT noted that as many societal norms and expectations are changing over time, what may have once been apt for judicial notice may no longer be relevant. However, the EAT found that this is not the case for childcare disparity. Whilst men may be taking on more childcare responsibilities than they have in the past, the position is still far from equal.

Comment

Notwithstanding the changes that have doubtless taken place for working parents over the last twenty years, this case confirms that Employment Tribunals (and, by extension, employers) must take still  take account of the childcare disparity first identified in 1999.

However, it may be that this concept has a limited shelf life. Given that the pandemic has accelerated changes in working patterns and arguably ‘de-gendered’ atypical working it may be that we soon reach a point where Tribunals no longer take ‘judicial notice’ of the childcare disparity for women.

Employers should keep a weather eye on developments, particularly as further changes are on the agenda.  The Government announced this June that it will consult on whether flexible working should become the default position for all roles, unless there is a good reason not to. If flexible working does become the norm, it may allow for childcare to be split equally amongst parents, male and female. This could weaken the legitimacy of the childcare disparity argument.

Although Dobson v North Cumbria Integrated Care NHS Foundation Trust indicates that we have not moved closer to childcare equality since Blur were in the charts, it may be that we are on the cusp of change.

In Northern Ireland, the Equality Act 2010 does not apply and instead protection from indirect sex discrimination is provided for by the Sex Discrimination (Northern Ireland) Order 1976. Whilst the legislation differs, the principles and protections provided for are largely similar and this judgement is likely to have persuasive authority in Northern Ireland.

Judgment: Dobson v North Cumbria Integrated Care NHS Foundation Trust

Contributors: Natasha Whitham and Sarah Maddock

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